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Sunday, August 26, 2012

Ind. Gov't. - "A Pike County resident and the Evansville Courier & Press are suing the Vanderburgh County Health Department to obtain access to cause of death information contained on death certificates maintained by the health department."

So began a long story by Mark Wilson in the August 15th Evansville Courier Journal. Some quotes:

The newspaper and Rita Ward of Winslow, Ind., contend the death certificates are public records, while the health department interprets state law to require it to restrict access to them.

It's information the newspaper had published on its public records page from 2002 until May when the health department suddenly stopped including death causes in the information it provided to the newspaper.

Ward said she was prompted to investigate what was behind the change when the newspaper stopped publishing death causes. She said she is interested because of the public health implications the information might reveal, such as possible links to smoking-related illnesses.

"I truly do believe printing the cause of death is important. I believe it is a great public tool that can help people," she said. "Maybe a reader might see a neighbor who died of colon cancer and make the decision to have their first overdue colonoscopy. It can be a first step toward a change for the better. It can touch a reader. It's personal. That's why it is important."

"This is information that is important to any community. It is important to the well-being of any community, and that is why I believe the health department collects that information," said Jay Young, the newspaper's investigative editor.

After the Courier & Press quit publishing the information, Ward requested the records from the health department in writing but was denied it in a letter written by Joseph Harrison Jr., attorney for Vanderburgh County. In that letter, Harrison wrote the law requires the purchaser of a death certificate to have a direct interest in the matter.

Ward then filed a complaint with the Indiana Public Access Counselor, who gave a nonbinding opinion in her favor.

Public Access Counselor Joseph Hoage said the requirements in the law Harrison cited were made by the Legislature beginning in January 2011 and applied to the state's death registration system.

However, he said Indiana law still requires local health departments to maintain records of the death certificates filed by physicians and make them available to the public.

Hoage based his opinion on a 1998 opinion from the Indiana Attorney General's Office that said death certificates are public record. That opinion was based in part on a 1975 Indiana Court of Appeals decision upholding former Vanderburgh Circuit Court Judge William Miller's decision in a 1973 case in which a reporter from the former Evansville Press sought a death record from the health department.

The Courier & Press requested the death records again after Hoage gave his opinion but was denied by the health department. The lawsuit was then filed.

More from the story:
Attorney Pat Shoulders, who represents the newspaper and Ward, argued the health department is confusing laws governing two different death records.

One is a death certificate, which Indiana law says physicians attending at a death must file with the local health department. The other is a certificate of death registration kept by the Indiana State Department of Health and which provides basic information about the deceased, including the cause.

Shoulders said the law requires local health departments to maintain copies of the death certificates and make them accessible to the public.

"It's our position — and the position of the public access counselor — that those are public records," he said. "We think the department of health, in good faith but wrongly, relied on statutes which deal with the certificate of death registration system which is maintained by the state department of health."

Here is a May 22, 2012 ILB entry headed "Vanderburgh County changes death-record policy."

Here is the July 30, 2012 PAC opinion 12-FC-169, concerning "Alleged Violation of the Access to Public Records Act by the Vanderburgh County Health Department." From page 5:

Thus, the Department receives from the physician that was last in attendance upon the deceased or the person in charge of internment, a Certificate of Death or certificate of stillborn. The local health officer is required to maintain a copy of the Certificate of Death. You have sought copies of all records maintained by the Department pursuant to I.C. § 16-37-3-3 for May of 2012. A 1998 advisory opinion issued by the Office of the Attorney General provided that aside from the exception set forth in I.C. § 16-37-3-9(d), the death certificate and information in it are disclosable public records. See Official Opinion 98-01; Office of the Attorney General. The Attorney General opinion was primarily based on Evansville-Vanderburgh County Dept. of Health v. Evansville Printing Corp., 332 N.E.2d 829 (Ind. Ct. App. 1975), which still remains good law. The Attorney General’s opinion provided that the local health officer may exercise discretion only in deciding to whom to release the document that constitutes the Certificate of Death Registration, which is a separate document than the Certificate of Death. Id; Evansville, 332 N.E.2d at 833. “However, the information contained in the document and the information used to prepare the document are disclosable public records under the Act. Only the records prepared by the local health officer under I.C. § 16-37-3-9(d) are not disclosable public records.” Official Opinion 98-01; Office of the Attorney General.
ILB: The 1998 AG opinions do not appear to be freely available online, or the ILB would provide a link. Here is a link to the first page of the opinion, via Hein Online.

The Public Access Counselor webiste has a document available (last updated Oct. 28, 2008), titled "Public Access to Death Records."

Here are earlier ILB entries on "death records."

Posted by Marcia Oddi on August 26, 2012 03:17 PM
Posted to Indiana Government